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Why We Need a Constitution (Now)

I attended the launch of the Scottish Constitution on 1st December in Glasgow. I have to say the attendance was disappointing but, in the light of my own views and those of many others, it was perhaps not surprising. There is a general feeling among supporters of the drive for independence that the constitution can be dealt with after independence – an opinion which, until Saturday, I shared.

The presentation by Mark McNaught was a compelling case for the adoption of a Scottish constitution – and at the earliest opportunity.

Let us consider the current situation. Only three countries in the world (four, if you prefer to think of Scotland as a separate country) do not have a written constitution. Every other country does and in the case of democracies, the rights of citizens to be protected from the excesses of their governments and their rights and freedoms are codified both nationally and internationally. We have no such contract with our government and this creates an effective vacuum where our rights as citizens are concerned. The rights we do have are not guaranteed in any way and only exist because no government has yet legislated against them. And such legislation is happening right now. Take the Investigative Powers Act just passed in Westminster. It is the greatest assault on the right to privacy in any democracy and would be patently unconstitutional in most other countries, but in Westminster, it goes through on the nod and without even a word in the media. There is no reason why further rights could not be stripped from citizens of what is increasingly becoming a fractious and ungovernable country.

There are also more serious long-term consequences for the overall functioning of government. The number of times the UK government has been taken to court over various actions it has taken – and lost – is staggering. But what happens as a consequence? The government changes the law to make the action in question legal. Job done. And no long-term legislation is considered. No planning for the future when, after all, any plans put in place by this government can be overturned by the next one. This gives us patchwork legislation, laws which are passed only when there is an immediate need for them, and passed often without parliamentary scrutiny or consideration for the knock-on consequences, while existing legislation – often archaic – simply lies on the statute books.

One of the more toxic consequences is a positively paranoid obsession with the concentration of power. Thus, with no constitutional guarantees , the powers of local authorities have been stripped to the point where there is no longer any meaningful local democracy. And, inevitably, there is conflict with the devolved administrations. With Northern Ireland effectively out of commission and Wales reduced to puppet status, this leaves Scotland, and the Scots are not taking abuse lying down.

In light of this obsession with power, it is perhaps inevitable that the UK government would want to remove itself from the EU. But Scotland doesn’t. Three quarters of us want to stay and many of us look to our own government to make that happen. The conflict comes to a head shortly and 29th March represents the point where any action we contemplate has to be put into effect.

So why do we need a constitution now, rather than at some time following independence?

Professor McNaught has made, in my view, an incontrovertible case for now rather than later. In the first place, we need a baseline protection for our right to self-determination including free elections without outside interference. This would make the process of holding a referendum considerably easier. Also, there are concerns on the part of supporters of the union – many of them “soft” supporters. These include suspicions that the SNP are trying to create a single-party state, and that old chestnut, pensions. In short, too many people want to stay with the devil they know rather than take a chance with the devil they don’t know. With no written constitution, people are no more confident of their place in an independent Scotland than they are now. Supporters of independence should not dismiss these concerns lightly – they matter deeply to those who hold them. If effectively addressed, their votes in favour of independence are what will take us comfortably over the finishing line. Constitutionally guaranteed rights can go a very long way toward creating confidence and ultimately support. In effect, having a baseline constitution in place can weaponise our campaign in what promises to be a very messy battle ahead.

For those who still think that the constitution can wait until after independence – that it has no value in the present campaign – there is a further matter to consider. When Scotland becomes an independent country and does so without a written constitution, we become vulnerable to outside interests, corporate in particular, which can subvert or derail our attempt to create the state that we want for ourselves. Currently we have considerable protection in the EU but, even if we continue our membership seamlessly after independence, we are still only protected under EU-wide legislation which covers only fifteen percent of all legislative areas. Furthermore, that protection is only courtesy of the constitutions of other member states. We need our own constitutional authority to be in place on the day of independence in order to maintain our freedom to design the country we want to live in.

Professor McNaught has carried out a huge amount of work so far but the constitution is not something to be handed down from on high. It is the will, the rights and the aspirations of the people of Scotland – a sort of instruction manual, if you like. With that in mind, the Constitutional Commission are asking everyone to become users on the scottishconstitution.com website, propose amendments, raise individual concerns and to comment on any specific matter which they have an interest in, to literally help develop the law. I implore everyone to get involved, you don’t need expertise and all comments and submissions are given equal consideration. The end result will define the kind of nation you and I want to live in and bring up our families. It is the key to our future.

The principal question now is how we encourage the Scottish government to unambiguously adopt this constitutional platform, so it becomes THE governing structure in an independent Scotland. Like other Scots, elected officials have never lived under a codified constitution and so, few appreciate its value and power. However, all can be convinced if the right arguments are advanced. Your job as citizens in a democracy is to read and understand the constitution and the rights it confers and contact your MSPs, speak with them and convince them of its importance for the future of Scotland. This will also help to bench test the democratic mechanisms that will make this constitution function.

Time is short. Please visit the site, add your own comments as you wish. Express your own concerns. And, please contact your MP,MSP and any party activists that you know.

There is no democracy without a constitution. The right to a constitution stems from the natural sovereignty of ‘the people’. The apparatus of the state exists to serve the people and the people have the prior right to define the kind of state they wish to live in.

Most countries have written constitutions. Most of them lay a claim to being democracies – but they are not democracies unless the constitution has been co-authored by (representatives of) the people and adopted by a majority of the electorate in a constitutional referendum.

One of the best examples of a proper constitution and a real democracy is the Swiss Canton of Zurich, where the people ‘gave themselves’ a new constitution in 2006. Because I recognised this as an important example, I translated the whole constitution into English. It can be read for free on the academia.edu site.

We will need a written constitution after independence. It will be important to draw this up with the input and agreement of all of the people of Scotland, not just those who are committed to independence now. The process carried through in Iceland was a great template and one that we should follow. There is no point in trying to start this now when half of the people will not participate.

I don’t agree Dougie; the points made by Prof. Mc Naught and the author of this piece David Younger make it very clear why the priority of establishing the constitution as soon as soon as possible, and before a referendum is so important. The Iceland process may well have been a good template but they didn’t have a hostile neighbour biting at their heels and getting up to dirty “sleekit” tricks determined to bring them down at every turn. If the SNP decide to wait it could be too late.
The SNP on the other hand could call a non binding advisory referendum guaranteed by the Claim of Right and the Declaration of Arbroath. Brexit was also an advisory referendum which Westminster rode roughshod over, and as someone else said, if this was challenged by Westminster, a precident would have been set under Constitutional law.

Regardless of what we do, we will still have an objectionable neighbour that will try to make life difficult for us. Every step along our way will be made as difficult as possible as they see the golden goose disappearing over the horizon. Forget GERS, forget good neighbours they need us to stay for their financial viability.

There is no point giving them another stone to throw at us if we start making a constitution with only part of our people engaged. How many leaders of the Labour and Tory parties were at the launch? I wasn’t there but I suspect it was a big zero.

We will need a written constitution but it needs to be absolutely legitimate. There is no point in starting something for it to be denounced all the way through by the forces of darkness.

I beg to disagree that Scotland should wait to start building a constitution. I believe more people will join the conversation as awareness grows. Having said that, I’d like to hear your thoughts Dougie, on how you would prefer to see the matter progressing.

I received notification through my existing contacts on Facebook. When I initially posted following the meeting, the number of comments along the lines of “I didn’t know anything about this” was staggering. Despite extensive activity on social media, I’m afraid that there is a great deal that escapes attention. I don’t know what the answer to achieving better communication is. I am bringing this to the attention of as many people as I can reach. That is all I can do.

Surely any Parliament, like any organisation ( The Womens’Rural Institute etc) should have a Constitution when it is set up. Why has this not been addressed?
Possibly it could cover who is eligible to stand especially if they belong to parties not registered as Political stand alone entities in Scotland. i.e. not foreign as in British or Westminster.

I agree 100% with both the sentiment and the principle of establishing this document. I would also agree that the exercise has to be carried out as soon as possible. Yes, there may be a considerable amount of relevant aspiration in the current constitutions in other countries that can be readily adapted, but to ignore or delay the requirement of a written constition being in place would be folly.

The level of legal protection – even at a lowly level such as crofting township common grazings – which a properly constructed constitution confers on a democaratically elected body should never be underestimated.

Creating a Scottish Constitution would enable us to draw the first line in the sand.

1) UK does have a constitution (it’s just not codified or written down). Common law (and in Scots law) – i.e. certain rights are legally protected by acts of parliament or legal judgments including the Human Rights act of 1998 and presided over by the UK Supreme Court – after the court of session (this includes acting as proxy for the European Court of Human Rights) Both the Tories and the SNP (Swinney with held Scotland’s budget contribution) want to get rid of the Supreme Court.

2) There is little difference in practice between having a constitution and not having one. What really matters is a liberal tradition and the separation of powers and the constant reaffirmation of that tradition in law and society (common law works just as well, in fact better than constitutions in some regards as it is easier to change). e.g. Gun control and Obama care are repeatedly defeated because of constitutional protection e.g. ‘the right to bare arms’. Almost everything in fact can be deemed unconstitutional and this means (in the US and elsewhere) progressive legislation ends up taking forever or is defeated by the Supreme Court (where const matters are decided) as it tends to be reactionary and right wing/ conservative. Hence all the fuss about Trump and his nomination for the Sup Court.

3) That only three countries have no constitution is neither here nor there (they happen to be New Zealand and Isreal – Canada also has an elements of an uncodified system). I repeat New Zealand and Canada! Hungary, Russia, Venezula and China for example do have constitutions or codified rules of the game. In fact constitutions are a way despots keep themselves in power. Push comes to shove they are useless without traditions (US individual rights didn’t stop the Patriot act as there was no political will to stop it).

4) This is the most muddled of thinking. …..“soft” supporters. These include suspicions that the SNP are trying to create a single-party state…’ And who exactly is it that is going to create this constitution other than supporters of Indie Scotland and the Scottish government and the SNP majority – less than half of the country…

Finally – One of the main ways of amending a constitution is through a referendum. No thanks .

2) so there is no practical use in having a constitution, yet it is used to test proposed legislation, by despots to keep themselves in power, and contrasts with a system based on common law? Interestingly armies, security servies and police forces are also used by despots to keep themselves in power, so should we get rid of ours too?

3) Canada (whose land appears to be largely owned by the British Crown) and other colonial states can avoid giving rights to indigenous peoples by avoiding a written constitution.

4) A written constitution should be a living document connected to its nation’s people by an ongoing process, that guides them by simplifying their rights into something they can use (plead the 5th and so on), and can bring in major changes (hopefully improvements) by mass popular deliberation, like recently in the Republic of Ireland. This is hugely supportive of democracy, since people (or their representatives) no longer have to laboriously check each proposed piece of legislation to see if it contains some fundamental attack on their rights.

One of the most significant omissions in legislative protection is the living world, our environment. We can choose to make ecocide (for example) a crime by making environmental protection an overriding legal priority in a written constitution. We could sweep away all kinds of age-accrued injustice by constitutional means.

And we could make law intelligible by software, which could bring in a whole new world of rational legalism and accessible rights and legal advice.

I think this article makes a good case, and will be checking out the linked site.

I wasn’t saying that having a codified (written) constitution is necessarily a bad thing. Just that it isn’t the solve all that some people assume and argue – that there are also benefits of having a common law system that is easier to amend – note that slavery and the Jim Crow laws were under the US constitution etc, or note the sarcasm when many of immigrant status in France treat Egalite, Fraternite, legalite etc… As I said, what really matters is a liberal tradition.

Also the main contention of the argument is that there should be a constitution prior to independence…this is highly problematic and bound to fail as the only people investing it with legitimacy will be those supporting independence. Hence it would be just another exercise that appears to others as arrogant and totalitarian from the indy movement – ‘the SNP as a single party state.’ deciding and ratifying a constitution that over half the country don’t subscribe to. It reeks of illiberalism and nation building, something that is held with deep suspicion in the Scottish tradition. It was the patronising and pious proclamations of certain aspects of the Yes movement during the indyref that put many off – a constitution born of indy supporters is patronising to those who feel their rights are well served by the current 300 year old system – including things like women’s suffrage, the extended franchise, devolution, and other ongoing equality and anti discrimination legislation and the ECHR. The refrain…’you don’t own Scotland arrogant nats’ was a common one. A better use of time and effort would be to address the genuine concerns and problems such as currency, trade (if in the EU), ‘that old chestnut pensions!’ Is a constitution going to protect thee ability to meet pension provison? and multiple other ‘project fear’ things – that as we are seeing with Brexit are actually project reality.

The indy movement, if it really wants to increase support (not that it needs much help given the current shower of….down south) should stop behaving like Jacobins. Most people are happy with the days of the week as they are thanks.

I agree, an examination of a constitutional framework for an independent Scotland is basically a no-brainer. I don’t suppose there’s a pdf of a constitution somewhere on the internet that one can use off the shelf, but most of the important principles of a country’s constitution really shouldn’t be that difficult to establish. That doesn’t mean any constitution can be finalised before independence is achieved, but any new independent Scottish Parliament could say work on an interim basis with such a constitution, which could be finalised by a referendum with a 60% majority after say three years of examination, discussion and amendment. Whilst the UK has managed one way or another without a written constitution for all its existence, the present chaos with Brexit maybe is showing the limitations of such a system. On the other hand, there are many examples of countries with written constitutions that are neither democracies nor functioning particularly well – there’s no guarantee of the absence of despotism on the basis of the sort of constitution you have. So I can’t agree that there “is no democracy without a written constitution”. However, that doesn’t mean Scotland should not have one. It should be as short as possible, and should establish general principles of good government and justice, without delving too far into the nitty-gritty. There should still be a place for precedence in establishing a living and sustainable constitution.

@John Monro
John, the constitution written by the eminent Prof McNaught is already there waiting to be downloaded. This is a comprehensive document which can be debated, amended, added to, voted on if the SNP introduce it into Holyrood and that should be done as soon as possible; SNP stop dragging your feet. Look what’s happened with the Continuity Bill; Westminster’s plan is to claw back all the devolved powers and Holyrood is powerless to stop them. The Constitution has to go to Holyrood to be ratified before Brexshit hits the fan.

Thomas Paine beautifully summed up the British constitution writing,,” There is no constitution.” But that doesn’t stop many talking and imagining something into existence. The UK is run on the politics of custom and practice with certain legal rights that can be immediately jettisoned by parliament under the claims of Parliamentary sovereignty. There are very good reasons why there is no constitution in the UK ie fundamental law defining basic rights.. That is why we need one.

But we need one as an agitational perspective to mobilise large numbers as well as to set in “concrete” the achieved rights of future Scottish citizens.

I believe it is essential to begin the work of discussing what a new Scottish Constitution should comprise and to begin the work of drafting a perspectives document for the future.